Texas Anti-Abortion Act SB8 and Implications

On September 1, Texas Anti-Abortion Act SB8 became law. On the same day, the US Supreme Court denied appeals for injunctive relief from that law. This means that as of yesterday, abortions after (roughly) six weeks–well before many women even know they’re pregnant–are prohibited under Texas law and enforceable by civil action. This post makes it easy to see the text of this law, with annotations about what various sections mean for the women of Texas…and the rest of the country.

It’s much worse than you probably think…

Annotated Text of Texas SB8

The following text is taken verbatim from the Texas legislative website, with emphases and annotation added. Most bold text, most indentations, and all purple text is added for reference (in italics and section headers). All hyperlinks are also added for easy reference.

AN ACT

…relating to abortion, including abortions after detection of an unborn child’s heartbeat; authorizing a private civil right of action.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1 [Name of Act]

This Act shall be known as the Texas Heartbeat Act.

SECTION 2 [Pre-Roe Texas Laws Were Not Repealed]

The legislature finds that the State of Texas never repealed, either expressly or by implication, the state statutes enacted before the ruling in Roe v. Wade, 410 U.S. 113 (1973), that prohibit and criminalize abortion unless the mother’s life is in danger.

SECTION 3 [Main Body of Act]

Chapter 171, Health and Safety Code, is amended by adding Subchapter H to read as follows: SUBCHAPTER H. DETECTION OF FETAL HEARTBEAT

Sec. 171.201. DEFINITIONS

In this subchapter:

(1) “Fetal heartbeat” means cardiac activity or the steady and repetitive rhythmic contraction of the fetal heart within the gestational sac.

(2) “Gestational age” means the amount of time that has elapsed from the first day of a woman’s last menstrual period.

(3) “Gestational sac” means the structure comprising the extraembryonic membranes that envelop the unborn child and that is typically visible by ultrasound after the fourth week of pregnancy.

(4) “Physician” means an individual licensed to practice medicine in this state, including a medical doctor and a doctor of osteopathic medicine.

(5) “Pregnancy” means the human female reproductive condition that:

(A) begins with fertilization;

(B) occurs when the woman is carrying the developing human offspring; and

(C) is calculated from the first day of the woman’s last menstrual period.

Given that you can’t be pregnant if you’re menstruating, the logical starting point of the pregnancy clock would’ve been the end of the last menstrual cycle. This provision therefore subtracts two to seven days (average) from term during which pregnancy remains legal. So if the prohibition is supposed to be at six weeks (42 days), this effectively reduces it to around five weeks (35 days), depending on the menstrual cycle length of the individual woman. However, it’s not clear this actually matters; this act is based on the detection of fetal heartbeats, not gestational age, so I’m not sure why this is even specified.

(6) “Standard medical practice” means the degree of skill, care, and diligence that an obstetrician of ordinary judgment, learning, and skill would employ in like circumstances.

(7) “Unborn child” means a human fetus or embryo in any stage of gestation from fertilization until birth.

This reaches beyond the scope of the nominal six-week abortion prohibition to establish that a fetus in any stage of development is a child, and thus a person, thereby establishing precedent for even greater future abortion regulation. There is a related change, below, forcing the woman to sign a document calling the fetus an “unborn child” in order to get her abortion.

Sec. 171.202. LEGISLATIVE FINDINGS.

This provides the nominal rational for the bill, most of which has little legal or actual meaning. The bill exists because the Texas GOP is anti-abortion. The rest is filler.

The legislature finds, according to contemporary medical research, that:

(1) fetal heartbeat has become a key medical predictor that an unborn child will reach live birth;

(2) cardiac activity begins at a biologically identifiable moment in time, normally when the fetal heart is formed in the gestational sac;

(3) Texas has compelling interests from the outset of a woman’s pregnancy in protecting the health of the woman and the life of the unborn child; and

(4) to make an informed choice about whether to continue her pregnancy, the pregnant woman has a compelling interest in knowing the likelihood of her unborn child surviving to full-term birth based on the presence of cardiac activity.

Sec. 171.203. DETERMINATION OF PRESENCE OF FETAL HEARTBEAT REQUIRED; RECORD.

(a) For the purposes of determining the presence of a fetal heartbeat under this section, “standard medical practice” includes employing the appropriate means of detecting the heartbeat based on the estimated gestational age of the unborn child and the condition of the woman and her pregnancy.

It’s interesting that appropriate means is not defined, leaving room for ex post facto judgement against he physician?

(b) Except as provided by Section 171.205, a physician may not knowingly perform or induce an abortion on a pregnant woman unless the physician has determined, in accordance with this section, whether the woman’s unborn child has a detectable fetal heartbeat.

(c) In making a determination under Subsection (b), the physician must use a test that is:

(1) consistent with the physician’s good faith and reasonable understanding of standard medical practice; and

(2) appropriate for the estimated gestational age of the unborn child and the condition of the pregnant woman and her pregnancy.

I’m not clear on the medical or scientific details behind this clause, but it appears to leave leeway to charge physicians with failing to use a test retroactively deemed more appropriate for the estimated gestational age. Thus, even if the physician does the test in good faith, he or she is not safe from accusations of having used the wrong test…or the liability that comes with it. But again, it’s also not clear that gestational age matters as long as the test for it was clearly documented. Only fetal heartbeat matters.

(d) A physician making a determination under Subsection (b) shall record in the pregnant woman’s medical record:

(1) the estimated gestational age of the unborn child;

The best ways to determine gestational age are defined in some detail by the American College of Obstetrics and Gynecology (ACOG):

“Ultrasound measurement of the embryo or fetus in the first trimester (up to and including 13 6/7 weeks of gestation) is the most accurate method to establish or confirm gestational age.”

This at least seems consistent with the Texas requirement that a sonogram be done on the woman prior to any abortion procedure anyway. However, this act measures from the first day of the woman’s last period so, again, this might not really matter.

(2) the method used to estimate the gestational age; and

(3) the test used for detecting a fetal heartbeat, including the date, time, and results of the test.

Sec. 171.204. PROHIBITED ABORTION OF UNBORN CHILD WITH DETECTABLE FETAL HEARTBEAT; EFFECT.

This section prohibits the performance of an abortion if there is a fetal heartbeat, as defined above, or if the physician failed to test for a heartbeat. For reference, according to Healthline, “A fetal heartbeat may first be detected by a vaginal ultrasound as early as 5 1/2 to 6 weeks after gestation. That’s when a fetal pole, the first visible sign of a developing embryo, can sometimes be seen.”  This is probably where the “six week” figure discussed in association with this law comes from…but six weeks is nowhere specified in this act.

(a) Except as provided by Section 171.205, a physician may not knowingly perform or induce an abortion on a pregnant woman if the physician detected a fetal heartbeat for the unborn child as required by Section 171.203 or failed to perform a test to detect a fetal heartbeat.

(b) A physician does not violate this section if the physician performed a test for a fetal heartbeat as required by Section 171.203 and did not detect a fetal heartbeat.

(c) This section does not affect:

(1) the provisions of this chapter that restrict or regulate an abortion by a particular method or during a particular stage of pregnancy; or

(2) any other provision of state law that regulates or prohibits abortion.

Sec. 171.205. EXCEPTION FOR MEDICAL EMERGENCY; RECORDS.

This allows for abortion in the event of a medical emergency, provided the cause and related details are documented.

(a) Sections 171.203 and 171.204 do not apply if a physician believes a medical emergency exists that prevents compliance with this subchapter.

(b) A physician who performs or induces an abortion under circumstances described by Subsection (a) shall make written notations in the pregnant woman’s medical record of:

(1) the physician’s belief that a medical emergency necessitated the abortion; and

(2) the medical condition of the pregnant woman that prevented compliance with this subchapter.

(c) A physician performing or inducing an abortion under this section shall maintain in the physician’s practice records a copy of the notations made under Subsection (b).

Sec. 171.206. CONSTRUCTION OF SUBCHAPTER.

While the primary purpose of this section is to state that the prohibition of abortion after a fetal heartbeat was detected does not imply a legal right to an abortion prior to that point, it also: protects the women from legal liability under this act (which is just so nice); clarifies that other restrictions already in effect are not impacted and; restates the rights of local restrictions to pass even more strict abortion restrictions.

(a) This subchapter does not create or recognize a right to abortion before a fetal heartbeat is detected.

(b) This subchapter may not be construed to:

(1) authorize the initiation of a cause of action against or the prosecution of a woman on whom an abortion is performed or induced or attempted to be performed or induced in violation of this subchapter;

(2) wholly or partly repeal, either expressly or by implication, any other statute that regulates or prohibits abortion, including Chapter 6-1/2, Title 71, Revised Statutes; or

(3) restrict a political subdivision from regulating or prohibiting abortion in a manner that is at least as stringent as the laws of this state.

Sec. 171.207. LIMITATIONS ON PUBLIC ENFORCEMENT.

This is key to the constitutional defendability of the act, clarifying that enforcement is entirely via private civil actions--meaning anyone and everyone who feels like filing a lawsuit. The state thus has no role in enforcement.

(a) Notwithstanding Section 171.005 or any other law, the requirements of this subchapter shall be enforced exclusively through the private civil actions described in Section 171.208. No enforcement of this subchapter, and no enforcement of Chapters 19 and 22, Penal Code, in response to violations of this subchapter, may be taken or threatened by this state, a political subdivision, a district or county attorney, or an executive or administrative officer or employee of this state or a political subdivision against any person, except as provided in Section 171.208.

(b) Subsection (a) may not be construed to:

(1) legalize the conduct prohibited by this subchapter or by Chapter 6-1/2, Title 71, Revised Statutes;

(2) limit in any way or affect the availability of a remedy established by Section 171.208; or

(3) limit the enforceability of any other laws that regulate or prohibit abortion.

Sec. 171.208. CIVIL LIABILITY FOR VIOLATION OR AIDING OR ABETTING VIOLATION.

This section is a landmine, or maybe the whole minefield. It states that any person, other than government employees, may bring related civil actions–thereby giving everyone in the state legal standing to file suit. Everyone Texas resident is now a legally authorized vigilante. But wait, there’s more…

(a) Any person, other than an officer or employee of a state or local governmental entity in this state, may bring a civil action against any person who:

(1) performs or induces an abortion in violation of this subchapter;

(2) knowingly engages in conduct that aids or abets the performance or inducement of an abortion, including paying for or reimbursing the costs of an abortion through insurance or otherwise, if the abortion is performed or induced in violation of this subchapter, regardless of whether the person knew or should have known that the abortion would be performed or induced in violation of this subchapter; or

In other words, anyone involved in the planning, discussion or funding of an abortion that is prohibited under this act is liable for civil damages. Abortion providers? Obviously. Insurance companies? Check. Loan to help pay the costs of transportation? Check. Advice leading to an abortion from a friend or family member? Probably. 

I haven’t found specific law clarifying Texas’ aiding and abetting guidelines in civil cases (suggestions welcome). However, in criminal cases it’s clarified by several law firms as something like this (which related to gun crimes):

Aiding and abetting another party’s commission of a crime might include:

Failure to make a reasonable effort to prevent another person from committing a criminal act

Failure to report the commission of a crime under “mandatory reporter status” (or alert law enforcement to a potential commission of a crime)

Agreeing to purchase a firearm for another party to use in the commission of a crime

Providing aid to another person who desires to engage in the commission of a crime

Aiding another party in the commission of a crime

Restating this in the context of SB8 and abortion, this section would imply that aiding and abetting guidelines include the following:

Failure to make a reasonable effort to prevent another person from getting an abortion

Failure to report the commission of an abortion 

Agreeing to fund an abortion

Providing aid to another person who desires an abortion

Aiding another party in the performance of an abortion

Attempting to help another person get an abortion

Directing another party to get an abortion

Encouraging another person to get an abortion

Soliciting another party to provide an abortion

Which means that anyone and everyone even vaguely helping anyone else get an abortion in Texas is now subject to substantial civil liabilities and legal costs.

(3) intends to engage in the conduct described by Subdivision (1) or (2).

And this liability extends to intent, not just actual actions. You can be apparently be found civilly liable for suggesting a woman in Texas get an abortion, even if she never does so.

(b) If a claimant prevails in an action brought under this section, the court shall award:

(1) injunctive relief sufficient to prevent the defendant from violating this subchapter or engaging in acts that aid or abet violations of this subchapter;

The court can apparently award however much it wants to the claimant in order to provide a deterrent. This is potentially far more than the $10,000 damages in (2).

(2) statutory damages in an amount of not less than $10,000 for each abortion that the defendant performed or induced in violation of this subchapter, and for each abortion performed or induced in violation of this subchapter that the defendant aided or abetted; and

Every person involved in any way in each and every prohibited act is liable for $10,000  each per act, in addition to unlimited injunctive relief provided in (1).

(3) costs and attorney’s fees.

Defendants must also pay claimant attorney fees, if the claimant is successful, but this does not apply to the defendant even if he or she prevails. I’m assuming these must be reasonable fees, but I’m not sure if this has to be stated. It doesn’t really matter given the unlimited injunctive relief in (1).

(c) Notwithstanding Subsection (b), a court may not award relief under this section in response to a violation of Subsection (a)(1) or (2) if the defendant demonstrates that the defendant previously paid the full amount of statutory damages under Subsection (b)(2) in a previous action for that particular abortion performed or induced in violation of this subchapter, or for the particular conduct that aided or abetted an abortion performed or induced in violation of this subchapter.

This prevents multiple $10,000 awards for the same offense, but notably allows for repeated applications of both injunctive relief in Subsection (b)(1) and legal fees in Subsection (b)(3). Given the apparent allowance for multiple concurrent or overlapping lawsuits for the same cause, this means a defendant could face infinite redundant injunctions and legal costs.

(d) Notwithstanding Chapter 16, Civil Practice and Remedies Code, or any other law, a person may bring an action under this section not later than the fourth anniversary of the date the cause of action accrues.

(e) Notwithstanding any other law, the following are not a defense to an action brought under this section:

(1) ignorance or mistake of law;

(2) a defendant’s belief that the requirements of this subchapter are unconstitutional or were unconstitutional;

(3) a defendant’s reliance on any court decision that has been overruled on appeal or by a subsequent court, even if that court decision had not been overruled when the defendant engaged in conduct that violates this subchapter;

In other words, a defendant is not protected from civil liability even if a a court decision in affect at the time of the abortion is subsequently overruled (presumably within the four-year limitation).

(4) a defendant’s reliance on any state or federal court decision that is not binding on the court in which the action has been brought;

(5) non-mutual issue preclusion or non-mutual claim preclusion;

(6) the consent of the unborn child’s mother to the abortion; or

(7) any claim that the enforcement of this subchapter or the imposition of civil liability against the defendant will violate the constitutional rights of third parties, except as provided by Section 171.209.

(f) It is an affirmative defense if:

(1) a person sued under Subsection (a)(2) reasonably believed, after conducting a reasonable investigation, that the physician performing or inducing the abortion had complied or would comply with this subchapter; or

(2) a person sued under Subsection (a)(3) reasonably believed, after conducting a reasonable investigation, that the physician performing or inducing the abortion will comply with this subchapter.

(f-1) The defendant has the burden of proving an affirmative defense under Subsection (f)(1) or (2) by a preponderance of the evidence.

(g) This section may not be construed to impose liability on any speech or conduct protected by the First Amendment of the United States Constitution, as made applicable to the states through the United States Supreme Court’s interpretation of the Fourteenth Amendment of the United States Constitution, or by Section 8, Article I, Texas Constitution.

(h) Notwithstanding any other law, this state, a state official, or a district or county attorney may not intervene in an action brought under this section. This subsection does not prohibit a person described by this subsection from filing an amicus curiae brief in the action.

(i) Notwithstanding any other law, a court may not award costs or attorney’s fees under the Texas Rules of Civil Procedure or any other rule adopted by the supreme court under Section 22.004, Government Code, to a defendant in an action brought under this section.

Even if a defendant prevails, they cannot be awarded costs or damages. This effectively encourages nuisance lawsuits with the intent to financially damage anyone associated with any abortion decision or intent.

(j) Notwithstanding any other law, a civil action under this section may not be brought by a person who impregnated the abortion patient through an act of rape, sexual assault, incest, or any other act prohibited by Sections 22.011, 22.021, or 25.02, Penal Code.

Well, at least the rapist can’t get rich suing his victim. However, nothing prevents a group of men from forming a rape-and-sue club, where they can claim damages from anyone performing abortions on their rape buddy’s victims. More practically, let’s say a convicted rapist tells a cell mate about the rape and subsequent abortion. The cell mate can file suit, win and share his winning with the rapist. I just have no idea how this can go wrong.

Sec. 171.209. CIVIL LIABILITY: UNDUE BURDEN DEFENSE LIMITATIONS.

Clarifies that protections against suing the woman herself do not apply to anyone else unless they have standing, and  that standing is very hard to come by. And there’s more…

(a) A defendant against whom an action is brought under Section 171.208 does not have standing to assert the rights of women seeking an abortion as a defense to liability under that section unless:

(1) the United States Supreme Court holds that the courts of this state must confer standing on that defendant to assert the third-party rights of women seeking an abortion in state court as a matter of federal constitutional law; or

(2) the defendant has standing to assert the rights of women seeking an abortion under the tests for third-party standing established by the United States Supreme Court.

(b) A defendant in an action brought under Section 171.208 may assert an affirmative defense to liability under this section if:

(1) the defendant has standing to assert the third-party rights of a woman or group of women seeking an abortion in accordance with Subsection (a); and

(2) the defendant demonstrates that the relief sought by the claimant will impose an undue burden on that woman or that group of women seeking an abortion.

(c) A court may not find an undue burden under Subsection (b) unless the defendant introduces evidence proving that:

(1) an award of relief will prevent a woman or a group of women from obtaining an abortion; or

(2) an award of relief will place a substantial obstacle in the path of a woman or a group of women who are seeking an abortion.

(d) A defendant may not establish an undue burden under this section by:

(1) merely demonstrating that an award of relief will prevent women from obtaining support or assistance, financial or otherwise, from others in their effort to obtain an abortion; or

(2) arguing or attempting to demonstrate that an award of relief against other defendants or other potential defendants will impose an undue burden on women seeking an abortion.

(e) The affirmative defense under Subsection (b) is not available if the United States Supreme Court overrules Roe v. Wade, 410 U.S. 113 (1973) or Planned Parenthood v. Casey, 505 U.S. 833 (1992), regardless of whether the conduct on which the cause of action is based under Section 171.208 occurred before the Supreme Court overruled either of those decisions.

The obvious implication is that the affirmative defense is entirely invalidated if Roe is overturned. But because overruled is not defined, it can probably be argued that the Supreme Court’s invalidation of any portion of Roe, or even its refusal to hear any case opposing this act (SB8), constitutes a partial or implicit overruling sufficient to invalidate an affirmative defense in a Texas state court. Further, because the clause is retroactive, it seems to mean that any prior successful affirmative defense under this act would be invalidated if the offense occurred within the statutory prior four years. Thus, if Roe is ever overturned according to Texas’ arbitrary definition, every person who lodged a successful affirmative defense in the prior four years would become subject to nearly unlimited civil liability.

(f) Nothing in this section shall in any way limit or preclude a defendant from asserting the defendant’s personal constitutional rights as a defense to liability under Section 171.208, and a court may not award relief under Section 171.208 if the conduct for which the defendant has been sued was an exercise of state or federal constitutional rights that personally belong to the defendant.

Sec. 171.210. CIVIL LIABILITY: VENUE.

This section is constructed so that the claimant–which is absolutely anyone who feels like filing a case–can choose their own county and force the case to be heard there, even if the defendant lives on the other side of Texas.

Given that the law makes almost no provision for handling overlapping civil lawsuits based on the same alleged offense, it also means a defendant could be simultaneously sued in, and liable for the cost of legal lawsuits in, multiple counties. Just trying to mount a defense against these potential nuisance lawsuits would bankrupt many people and organizations.

(a) Notwithstanding any other law, including Section 15.002, Civil Practice and Remedies Code, a civil action brought under Section 171.208 shall be brought in:

(1) the county in which all or a substantial part of the events or omissions giving rise to the claim occurred;

(2) the county of residence for any one of the natural person defendants at the time the cause of action accrued;

(3) the county of the principal office in this state of any one of the defendants that is not a natural person; or

(4) the county of residence for the claimant if the claimant is a natural person residing in this state.

(b) If a civil action is brought under Section 171.208 in any one of the venues described by Subsection (a), the action may not be transferred to a different venue without the written consent of all parties.

Sec. 171.211. SOVEREIGN, GOVERNMENTAL, AND OFFICIAL IMMUNITY PRESERVED.

This section simply protects the state, all subdivisions, officers, etc. from any civil liability related to attempts to challenge the law.

(a) This section prevails over any conflicting law, including:

(1) the Uniform Declaratory Judgments Act; and

(2) Chapter 37, Civil Practice and Remedies Code.

(b) This state has sovereign immunity, a political subdivision has governmental immunity, and each officer and employee of this state or a political subdivision has official immunity in any action, claim, or counterclaim or any type of legal or equitable action that challenges the validity of any provision or application of this chapter, on constitutional grounds or otherwise.

(c) A provision of state law may not be construed to waive or abrogate an immunity described by Subsection (b) unless it expressly waives immunity under this section.

Sec. 171.212. SEVERABILITY.

Provides a clear statement of intent, such that all provisions of the act should be regarded as severable. Explicitly an attempt to avoid invalidation of any provisions if others are struck down, as per the precedent set by Leavitt v. Jane L.

(a) Mindful of Leavitt v. Jane L. the severability of a state statute regulating abortion the United States Supreme Court held that an explicit statement of legislative intent is controlling, it is the intent of the legislature that every provision, section, subsection, sentence, clause, phrase, or word in this chapter, and every application of the provisions in this chapter, are severable from each other.

(b) If any application of any provision in this chapter to any person, group of persons, or circumstances is found by a court to be invalid or unconstitutional, the remaining applications of that provision to all other persons and circumstances shall be severed and may not be affected. All constitutionally valid applications of this chapter shall be severed from any applications that a court finds to be invalid, leaving the valid applications in force, because it is the legislature’s intent and priority that the valid applications be allowed to stand alone. Even if a reviewing court finds a provision of this chapter to impose an undue burden in a large or substantial fraction of relevant cases, the applications that do not present an undue burden shall be severed from the remaining applications and shall remain in force, and shall be treated as if the legislature had enacted a statute limited to the persons, group of persons, or circumstances for which the statute’s application does not present an undue burden.

(b-1) If any court declares or finds a provision of this chapter facially unconstitutional, when discrete applications of that provision can be enforced against a person, group of persons, or circumstances without violating the United States Constitution and Texas Constitution, those applications shall be severed from all remaining applications of the provision, and the provision shall be interpreted as if the legislature had enacted a provision limited to the persons, group of persons, or circumstances for which the provision’s application will not violate the United States Constitution and Texas Constitution.

(c) The legislature further declares that it would have enacted this chapter, and each provision, section, subsection, sentence, clause, phrase, or word, and all constitutional applications of this chapter, irrespective of the fact that any provision, section, subsection, sentence, clause, phrase, or word, or applications of this chapter, were to be declared unconstitutional or to represent an undue burden.

(d) If any provision of this chapter is found by any court to be unconstitutionally vague, then the applications of that provision that do not present constitutional vagueness problems shall be severed and remain in force.

(e) No court may decline to enforce the severability requirements of Subsections (a), (b), (b-1), (c), and (d) on the ground that severance would rewrite the statute or involve the court in legislative or lawmaking activity. A court that declines to enforce or enjoins a state official from enforcing a statutory provision does not rewrite a statute, as the statute continues to contain the same words as before the court’s decision. A judicial injunction or declaration of unconstitutionality:

(1) is nothing more than an edict prohibiting enforcement that may subsequently be vacated by a later court if that court has a different understanding of the requirements of the Texas Constitution or United States Constitution;

(2) is not a formal amendment of the language in a statute; and

(3) no more rewrites a statute than a decision by the executive not to enforce a duly enacted statute in a limited and defined set of circumstances.

SECTION 4 [Attorney’s Fees for Legal Challenges]

States that anyone challenging any Texas abortion law, or that of any county, city or other subdivision, cannot recover attorney’s fees from the defendant even if they prevail in the case. Which is just another way to prevent any but the very rich from challenging this or any related abortion act.

Chapter 30, Civil Practice and Remedies Code, is amended by adding Section 30.022 to read as follows:

Sec. 30.022. AWARD OF ATTORNEY’S FEES IN ACTIONS CHALLENGING ABORTION LAWS.

(a) Notwithstanding any other law, any person, including an entity, attorney, or law firm, who seeks declaratory or injunctive relief to prevent this state, a political subdivision, any governmental entity or public official in this state, or any person in this state from enforcing any statute, ordinance, rule, regulation, or any other type of law that regulates or restricts abortion or that limits taxpayer funding for individuals or entities that perform or promote abortions, in any state or federal court, or that represents any litigant seeking such relief in any state or federal court, is jointly and severally liable to pay the costs and attorney’s fees of the prevailing party.

(b) For purposes of this section, a party is considered a prevailing party if a state or federal court:

(1) dismisses any claim or cause of action brought against the party that seeks the declaratory or injunctive relief described by Subsection (a), regardless of the reason for the dismissal; or

(2) enters judgment in the party’s favor on any such claim or cause of action.

(c) Regardless of whether a prevailing party sought to recover costs or attorney’s fees in the underlying action, a prevailing party under this section may bring a civil action to recover costs and attorney’s fees against a person, including an entity, attorney, or law firm, that sought declaratory or injunctive relief described by Subsection (a) not later than the third anniversary of the date on which, as applicable:

(1) the dismissal or judgment described by Subsection (b) becomes final on the conclusion of appellate review; or

(2) the time for seeking appellate review expires.

(d) It is not a defense to an action brought under Subsection (c) that:

(1) a prevailing party under this section failed to seek recovery of costs or attorney’s fees in the underlying action;

(2) the court in the underlying action declined to recognize or enforce the requirements of this section; or

(3) the court in the underlying action held that any provisions of this section are invalid, unconstitutional, or preempted by federal law, notwithstanding the doctrines of issue or claim preclusion.

SECTION 5 [Abortion Statutes]

This section encourages state subdivisions (lower government entities) to create even more restrictive abortion laws. Given the severability sections and  blanket immunity from recovery of legal fees by legal challengers, this offers broad permission for localities to increasingly restrict a woman’s (no longer existent) right to choose.

Subchapter C, Chapter 311, Government Code, is amended by adding Section 311.036 to read as follows:

Sec. 311.036. CONSTRUCTION OF ABORTION STATUTES.

(a) A statute that regulates or prohibits abortion may not be construed to repeal any other statute that regulates or prohibits abortion, either wholly or partly, unless the repealing statute explicitly states that it is repealing the other statute.

(b) A statute may not be construed to restrict a political subdivision from regulating or prohibiting abortion in a manner that is at least as stringent as the laws of this state unless the statute explicitly states that political subdivisions are prohibited from regulating or prohibiting abortion in the manner described by the statute.

In other words, counties, cities and presumably any other legal subdivision of the state may enact even more abortion restrictions without limitation. In this context, the prior focus on severability can be seen as encouraging local jurisdictions to draft restrictive abortion regulations because overruling of these regulations would have no impact on state law.

(c) Every statute that regulates or prohibits abortion is severable in each of its applications to every person and circumstance. If any statute that regulates or prohibits abortion is found by any court to be unconstitutional, either on its face or as applied, then all applications of that statute that do not violate the United States Constitution and Texas Constitution shall be severed from the unconstitutional applications and shall remain enforceable, notwithstanding any other law, and the statute shall be interpreted as if containing language limiting the statute’s application to the persons, group of persons, or circumstances for which the statute’s application will not violate the United States Constitution and Texas Constitution.

This reaches beyond SB8 to any and all past, current or future statutes, protecting all of them from invalidation by assuring universal severability.

SECTION 6 [Enforcement]

This clarifies that the state has no role in enforcement, and thus prior Supreme Court rulings have no impact on SB8, which is enforced solely by civilian civil action. 

Section 171.005, Health and Safety Code, is amended to read as follows:

Sec. 171.005. COMMISSION [DEPARTMENT] TO ENFORCE; EXCEPTION. The commission [department] shall enforce this chapter except for Subchapter H, which shall be enforced exclusively through the private civil enforcement actions described by Section 171.208 and may not be enforced by the commission.

SECTION 7 [Required Documentation]

Requires documentation by the physician of the reason for any abortion performed by medical necessity, and requires preservation of that record.

Subchapter A, Chapter 171, Health and Safety Code is amended by adding Section 171.008 to read as follows:

Sec. 171.008. REQUIRED DOCUMENTATION.

(a) If an abortion is performed or induced on a pregnant woman because of a medical emergency, the physician who performs or induces the abortion shall execute a written document that certifies the abortion is necessary due to a medical emergency and specifies the woman’s medical condition requiring the abortion.

(b) A physician shall:

(1) place the document described by Subsection (a) in the pregnant woman’s medical record; and

(2) maintain a copy of the document described by Subsection (a) in the physician’s practice records.

(c) A physician who performs or induces an abortion on a pregnant woman shall:

(1) if the abortion is performed or induced to preserve the health of the pregnant woman, execute a written document that:

(A) specifies the medical condition the abortion is asserted to address; and

(B) provides the medical rationale for the physician’s conclusion that the abortion is necessary to address the medical condition; or

(2) for an abortion other than an abortion described by Subdivision (1), specify in a written document that maternal health is not a purpose of the abortion.

(d) The physician shall maintain a copy of a document described by Subsection (c) in the physician’s practice records.

SECTION 8 [Definition of Voluntary Abortion]

Requires a lot of additional information be provided to the woman prior to abortion, including sonogram images and alternatives to abortion; forces the woman to wait at least 24 hours for the abortion; requires her to sign a form acknowledging that she’s terminating an “unborn child” ; and a whole lotta other stuff.

Section 171.012(a), Health and Safety Code, is amended to read as follows:

(a) Consent to an abortion is voluntary and informed only if:

(1) the physician who is to perform or induce the abortion informs the pregnant woman on whom the abortion is to be performed or induced of

(A) the physician’s name;

(B) the particular medical risks associated with the particular abortion procedure to be employed, including, when medically accurate:

(i) the risks of infection and hemorrhage;

(ii) the potential danger to a subsequent pregnancy and of infertility; and

(iii) the possibility of increased risk of breast cancer following an induced abortion and the natural protective effect of a completed pregnancy in avoiding breast cancer;

(C) the probable gestational age of the unborn child at the time the abortion is to be performed or induced; and

(D) the medical risks associated with carrying the child to term;

(2) the physician who is to perform or induce the abortion or the physician’s agent informs the pregnant woman that:

(A) medical assistance benefits may be available for prenatal care, childbirth, and neonatal care;

(B) the father is liable for assistance in the support of the child without regard to whether the father has offered to pay for the abortion; and

(C) public and private agencies provide pregnancy prevention counseling and medical referrals for obtaining pregnancy prevention medications or devices, including emergency contraception for victims of rape or incest;

(3) the physician who is to perform or induce the abortion or the physician’s agent:

(A) provides the pregnant woman with the printed materials described by Section 171.014; and

(B) informs the pregnant woman that those materials:

(i) have been provided by the commission [Department of State Health Services];

(ii) are accessible on an Internet website sponsored by the commission [department];

(iii) describe the unborn child and list agencies that offer alternatives to abortion; and

(iv) include a list of agencies that offer sonogram services at no cost to the pregnant woman;

(4) before any sedative or anesthesia is administered to the pregnant woman and at least 24 hours before the abortion or at least two hours before the abortion if the pregnant woman waives this requirement by certifying that she currently lives 100 miles or more from the nearest abortion provider that is a facility licensed under Chapter 245 or a facility that performs more than 50 abortions in any 12-month period:

(A) the physician who is to perform or induce the abortion or an agent of the physician who is also a sonographer certified by a national registry of medical sonographers performs a sonogram on the pregnant woman on whom the abortion is to be performed or induced;

(B) the physician who is to perform or induce the abortion displays the sonogram images in a quality consistent with current medical practice in a manner that the pregnant woman may view them;

(C) the physician who is to perform or induce the abortion provides, in a manner understandable to a layperson, a verbal explanation of the results of the sonogram images, including a medical description of the dimensions of the embryo or fetus, the presence of cardiac activity, and the presence of external members and internal organs; and

(D) the physician who is to perform or induce the abortion or an agent of the physician who is also a sonographer certified by a national registry of medical sonographers makes audible the heart auscultation for the pregnant woman to hear, if present, in a quality consistent with current medical practice and provides, in a manner understandable to a layperson, a simultaneous verbal explanation of the heart auscultation;

(5) before receiving a sonogram under Subdivision (4)(A) and before the abortion is performed or induced and before any sedative or anesthesia is administered, the pregnant woman completes and certifies with her signature an election form that states as follows:

“ABORTION AND SONOGRAM ELECTION

(1) THE INFORMATION AND PRINTED MATERIALS DESCRIBED BY SECTIONS 171.012(a)(1)-(3), TEXAS HEALTH AND SAFETY CODE, HAVE BEEN PROVIDED AND EXPLAINED TO ME.

(2) I UNDERSTAND THE NATURE AND CONSEQUENCES OF AN ABORTION.

(3) TEXAS LAW REQUIRES THAT I RECEIVE A SONOGRAM PRIOR TO RECEIVING AN ABORTION.

(4) I UNDERSTAND THAT I HAVE THE OPTION TO VIEW THE SONOGRAM IMAGES.

(5) I UNDERSTAND THAT I HAVE THE OPTION TO HEAR THE HEARTBEAT.

(6) I UNDERSTAND THAT I AM REQUIRED BY LAW TO HEAR AN EXPLANATION OF THE SONOGRAM IMAGES UNLESS I CERTIFY IN WRITING TO ONE OF THE FOLLOWING:

___ I AM PREGNANT AS A RESULT OF A SEXUAL ASSAULT, INCEST, OR OTHER VIOLATION OF THE TEXAS PENAL CODE THAT HAS BEEN REPORTED TO LAW ENFORCEMENT AUTHORITIES OR THAT HAS NOT BEEN REPORTED BECAUSE I REASONABLY BELIEVE THAT DOING SO WOULD PUT ME AT RISK OF RETALIATION RESULTING IN SERIOUS BODILY INJURY.

___ I AM A MINOR AND OBTAINING AN ABORTION IN ACCORDANCE WITH JUDICIAL BYPASS PROCEDURES UNDER CHAPTER 33, TEXAS FAMILY CODE.

___ MY UNBORN CHILD [FETUS] HAS AN IRREVERSIBLE MEDICAL CONDITION OR ABNORMALITY, AS IDENTIFIED BY RELIABLE DIAGNOSTIC PROCEDURES AND DOCUMENTED IN MY MEDICAL FILE.

(7) I AM MAKING THIS ELECTION OF MY OWN FREE WILL AND WITHOUT COERCION.

(8) FOR A WOMAN WHO LIVES 100 MILES OR MORE FROM THE NEAREST ABORTION PROVIDER THAT IS A FACILITY LICENSED UNDER CHAPTER 245, TEXAS HEALTH AND SAFETY CODE, OR A FACILITY THAT PERFORMS MORE THAN 50 ABORTIONS IN ANY 12-MONTH PERIOD ONLY:

I CERTIFY THAT, BECAUSE I CURRENTLY LIVE 100 MILES OR MORE FROM THE NEAREST ABORTION PROVIDER THAT IS A FACILITY LICENSED UNDER CHAPTER 245 OR A FACILITY THAT PERFORMS MORE THAN 50 ABORTIONS IN ANY 12-MONTH PERIOD, I WAIVE THE REQUIREMENT TO WAIT 24 HOURS AFTER THE SONOGRAM IS PERFORMED BEFORE RECEIVING THE ABORTION PROCEDURE. MY PLACE OF RESIDENCE IS:__________.

________________________________________
SIGNATURE

DATE”;

(6) before the abortion is performed or induced, the physician who is to perform or induce the abortion receives a copy of the signed, written certification required by Subdivision (5); and

(7) the pregnant woman is provided the name of each person who provides or explains the information required under this subsection.

SECTION 9 [Abortion Procedure Report]

Specifies amendments to details of a physician report that is separately required for all abortions: “PHYSICIAN REPORTING REQUIREMENTS; CRIMINAL PENALTY. (a) A physician who performs an abortion at an abortion facility must complete and submit a monthly report to the department on each abortion performed by the physician at the abortion facility. The report must be submitted on a form provided by the department.”

Section 245.011(c), Health and Safety Code, is amended to read as follows:

(c) The report must include:

(1) whether the abortion facility at which the abortion is performed is licensed under this chapter;

(2) the patient’s year of birth, race, marital status, and state and county of residence;

(3) the type of abortion procedure;

(4) the date the abortion was performed;

(5) whether the patient survived the abortion, and if the patient did not survive, the cause of death;

(6) the probable post-fertilization age of the unborn child based on the best medical judgment of the attending physician at the time of the procedure;

(7) the date, if known, of the patient’s last menstrual cycle;

(8) the number of previous live births of the patient; [and]

(9) the number of previous induced abortions of the patient;

I assume the intent is to provide documentation of prior abortions that might further subject the facility, provider and others to civil liability in addition to the current procedure.

(10) whether the abortion was performed or induced because of a medical emergency and any medical condition of the pregnant woman that required the abortion; and

(11) the information required under Sections 171.008(a) and (c).

SECTION 10 [Restatement of Severability]

Every provision in this Act and every application of the provision in this Act are severable from each other. If any provision or application of any provision in this Act to any person, group of persons, or circumstance is held by a court to be invalid, the invalidity does not affect the other provisions or applications of this Act.

SECTION 11 [Act is Not Retroactive]

The change in law made by this Act applies only to an abortion performed or induced on or after the effective date of this Act.

SECTION 12 [Effective Date]

This Act takes effect September 1, 2021.

Other Texas SB8 Resources

This is just some random stuff for now. More might come…or might not.

• 10 Reasons the Texas Heartbeat Act is Worse than You Think

Jay Willis on Twitter

Jay Willis put together a great thread on thread on Twitter covering some of the more heinous details mentioned above:

This part is insane: People can bring suits up to FOUR YEARS later. And if a court decision briefly protects the right to abortion and then gets overruled, defendants can't rely on that, EVEN IF the decision was good law at the time. Perpetual threat of devastating liability. pic.twitter.com/xQtxMHo8eY

— Jay Willis (@jaywillis) September 1, 2021

Heather Cox Richardson on Facebook

Some great insight into the vigilante aspects of SB8 enforcement provisions:

Peace.